WESTAF PROPERTIES LTD v. SANI & ANOR
(2022)LCN/16614(CA)
In The Court Of Appeal
(KANO JUDICIAL DIVISION)
On Tuesday, October 25, 2022
CA/K/497/2018
Before Our Lordships:
Ita George Mbaba Justice of the Court of Appeal
Boloukuromo Moses Ugo Justice of the Court of Appeal
Abubakar Muazu Lamido Justice of the Court of Appeal
Between
WESTAF PROPERTIES LIMITED APPELANT(S)
And
1. BARRISTER ABUBAKAR D. SANI 2. DEPUTY SHERIFF HIGH COURT OF JUSTICE KANO STATE RESPONDENT(S)
RATIO
WHETHER OR NOT ALL PARTIES TO A SUIT ARE BOUND BY THE DECISION OF THE COURT REACHED IN THE DETERMINATION OF THE SUIT
The law is trite, that every party in or privy to a suit is bound by the decision of the Court reached at the determination of their suit. See the case of Agbogunleri Vs Depo & Ors (2008) LPELR 243 (SC), where it was held: “Therefore, judgment against a testator operates downstream as the first suit ID/199/81, to operate against any fresh claim in respect of the same land or property by the same parties. This has been the position of the law for quite sometime. Thus, the general principle of the law relating to privy in title is that in transactions relating to land, any person who derives title from or takes an assignment from, or is let into possession by, or otherwise claims or “comes in” under the actual representor, is bound by the same representation, and consequent estoppel, as that which binds such actual representator. See Tylor v. Needham (1810) 2 Taunt. 279; Spenser, Bower and Turner in their book: Estoppel by Representation, Third Edition, Butterworth, London, 1977, pages 123-124.” Per MUHAMMAD, JSC.” PER MBABA, J.C.A.
THE MEANING OF THE WORD “PRIVY”
Per MBABA, JCA (Pp. 21-22, paras. B-A)
“On the meaning of the word “privy”, the authorities are replete, as in RE: Agboyi-Ketu Local Development Area & Anor (2017) LPELR-41955 CA, where this Court, per Georgewill, JCA, held: “In relation to the facts and circumstances of this application, the word “Privy” has been defined so succinctly as “A person who is in privity with another. One who is a partaker or has any part or interest in any action or matter or thing. In connection with the doctrine of Res Judicata, one who after the commencement of the action has acquired interest in the subject matter affected by the judgment through or under one of the parties as by inheritances succession, purchase or assignment.” See Black’s Law Dictionary 6th Edition AT p. 1200. See also Daniel v. Kadiri (Supra), Chief Oyelakin Balogun v. Pastor Moses Afolayan (2005) All FWLR (Pt. 85) 331 AT p. 334, Kola Adedeji & Anor v. Otunba Segun Adebayo & Ors (2012) LPELR 7990 (CA).” See also Agbogunleri Vs Depo & Ors (supra), where it was held: “But, who is a privy? In Arabio v. Kanga (1932) 1 WACA 253 at p. 254, a privy was defined as that person whose title is derived from and who claims through a party. It may also imply identity of successive interest or persons having interest in property.” Per MUHAMMAD, JSC. In the case of R.T. NA & Ors Vs H.W.U.N. & Ors (2008) LPELR- 3196 (SC) (cited by Appellant): “…Under our law, a person whose interest is involved or is in issue in an action and who knowingly chose to stand by and let other fight his battle for him, is equally bound by the result in the same way as if he were a party.”
It was further held in the case of Bako Vs Dantata (supra) as follows, in a situation of an affiliate company taking another suit, after being represented, in a case:
“The principle behind this rule, is that where a competent Court has determined an issue, and entered judgment thereon, neither party may relitigate that issue by formulating a fresh action on what has already been decided. Madukolu v. Nkemdilim (1962) 1 All NLR 587. But it is important to note that when a plea of a res judicata is made, it is necessary to show not only that the cause of action is the same, but also that the plaintiff has had an opportunity to recover in the first action that which he seeks to recover in the second. Re Hilton ex p. March (1892) 67 L.T. 594.” Per CRAIG, JSC. PER MBABA, J.C.A.
ITA GEORGE MBABA, J.C.A. (Delivering the Leading Judgment): This appeal emanated from the ruling of Kano State High Court, in Suit No. K/590/2006, delivered on 10/12/12, whereof, the learned trial Judge, Hon. Justice Patricia Muhmoud (now JCA) refused the Interpleader Summons, filed on 23/7/12, which Appellant sought to set aside the Court’s Order made on 18/6/2012 granting leave to the 1st Respondent herein, to attach and sell the landed property of the Judgment Debtors, in satisfaction of a judgment debt entered in the Suit No. K/590/2006, in favour of the 1st Respondent.
Dissatisfied with the refusal to grant the interpleader application, Appellant filed this appeal, as per the Notice and Grounds of Appeal, on 8/10/2017, pursuant to the leave, granted by this Court on 5/10/2017.
A little synopsis of the case shows that Appellant, a limited liability company, and member of MRS GROUP OF COMPANIES (others including MRS Oil & Gas Co. Ltd and MRS Investment Ltd which is the investment arm of the MRS GROUP) had the property forming the subject matter of this appeal, situate at No. 2 Bayero University, Kano, Road (popularly known as Cold Room Meat Store or GIDAN NAMA), and covered by Certificate of Occupancy No. LKN/COM/89/46, issued on 11/5/1990 to Nasara Agro Industrial Co. Ltd. The said property was subsequently transferred by Nasara Agro Industrial Co. Ltd to Bank of the North Ltd, which later became Unity Bank Plc, and finally Polaris Bank Ltd. Sometime in 2006, the property was acquired by the MRS GROUP from Unity Bank Plc.
The 1st Respondent herein, said that he acted as agent to the MRS GROUP in their acquisition of the property from Unity Bank Plc and on or about the 17th November, 2006, commenced Suit No. K/590/2006 – Barrister Abubakar D. Sani Vs Alhaji Sayyu I. Dantata & 2 Ors, to claim his commission/agency fee.
Based on the foregoing, the 1st Respondent, by his Writ of Summons and Statement of Claim, sought specific reliefs against the Defendants on record or any member of the MRS GROUP. As evinced from that case, 1st Respondent said he was approached by Alhaji Sayyu I. Dantata in March, 2005 to procure a fairly large undeveloped plot of land within Kano Metropolis for use as petrol station/depot by any member of the MRS GROUP (to be determined at the appropriate time); that his agency fee (5% of the purchase price of N115million) was to be paid by Alhaji Sayyu I. Dantata, MRS OIL & GAS CO. LTD or any member of the MRS GROUP (See pages 4 – 14 of the Records of Appeal).
The main issue was therefore payment of the agency fees and the 1st Respondent wanted any member of the MRS GROUP to pay his agency fees, regardless of who was designated to do so.
1st Respondent had therefore issued his Bill of Charges (Commission) dated 10/10/2006 to MRS GROUP OF COMPANIES and specifically named MRS OIL & GAS CO. LTD, MRS INVESTMENT CO. LTD, among others (See Page 425 of the Records).
It is not in dispute that 1st Respondent had acted for the MRS GROUP in acquiring the property, he had assisted Alhaji Dantata in investigating the title documents and perfecting the transfer of the property to MRS Oil & Gas Ltd, who was acknowledged as member of the MRS GROUP.
1st Respondent’s claim in the Writ of Summons was:
(1) The sum of N5,750,000.00 (N5.75 million) being commission/agency fee jointly and severally agreed to be paid by the defendants to the Plaintiff as consideration, pursuant to the agency contract…
(2) …
(3) Solicitors’ fees in the sum of N575,000 (Five Hundred and Seventy-Five and Naira) being 10% of the said sum of N5.75 million which the Plaintiff agreed to pay to his Solicitors M.N. Duru & Co. to prosecute his claim.
(4) Interest at the prevailing rate from the date of the writ until judgment and thereafter at the Court’s rate of 10% until liquidated…”
The trial Court had entered judgment for the 1st Respondent in the suit against Alhaji Sayyu I. Dantata and MRS Oil & Gas Co. Ltd in the said sum of N5.70 million, representing 5% commission of the purchase price of N115,000,000, in respect of the property covered by Certificate of Occupancy No. LKN/COM/89/46; N575,000 representing Solicitors fees paid to 1st Respondent’s Solicitor for prosecuting the case, and interest at the rate of 10%, from date of judgment, until final liquidation of the judgment sum (see Pages 496 to 497 of the Records of Appeal).
It was revealed that, though the purchase price of the property was made to Unity Bank Plc in 2006, the release of the original title documents of the land were released to MRS Investments Ltd in February, 2010. Thereafter, the parties proceeded to the stage of drafting, review and execution of a deed of assignment to legally transfer and divest the bank of legal title/ownership of the property; that by letter dated 30/9/2010, MRS Investments Co. Ltd wrote to the Unity Bank Plc for formalization of the deed of transfer of the title documents to the Appellant, and sequel to that request, Unity Bank Plc and Appellant executed the Deed of Assignment, dated 21/11/2011, upon the consent to assign the property granted by the Government of Kano State (Pages 295 to 300 of the Records).
Counsel said that, prior to the time, Unity Bank Plc had not executed a deed of assignment or any document or instrument of title in favour of MRS Oil & Gas Co. Ltd or any other person (pages 335 to 336 of the Records).
The 1st Respondent took out application (a motion) dated 12/4/2012 for leave to attach and sell the immovable properties of the judgment debtors in Suit No. K/590/2006 (i.e. Alhaji Sayya I. Dantata and MRS Oil & Gas Co. Ltd) and the lower Court granted the application on 18/6/2012 to 1st Respondent to attach and sell, by private treaty or public auction, any immovable property of the Judgment Debtors, including the property popularly known as “Gidan Nama”
Appellant, who said it was neither a party to the suit, nor participated, nor heard in any of the proceedings in Suit No. K/590/2006, filed an interpleader summons on 23/7/2012, seeking to set aside the order made by the lower Court on 18/6/2012, granting leave to the 1st Respondent to attach and sell the landed property of the Judgment Debtors to satisfy the judgment debt, and claimed ownership of the said property known as “Gidan Nama.”
Appellant argued that the 1st Respondent did not exercise due diligence by conducting a search at the Lands Registry to determine the registered owner of the property before filing the application for leave to attach and sell the immovable properties of the judgment debtors; Appellant said Deed of Assignment in respect of the property was registered in its name; it said that 1st Respondent did not place before the lower Court, any document or instrument of title to show that ownership of the property was vested in any other person, other than the Appellant.
The lower Court refused the Appellant’s application on 10/12/2012, seeking to set aside the order of the attachment of property, authorizing 1st Respondent to attach and sell the property, to satisfy the judgment debt.
That is the decision Appellant appealed against, as per the Notice of Appeal, filed on 8/10/2017, pursuant to the leave of this Court, granted on 5/10/2017 (Pages 539 – 544 of the Records of Appeal). Appellant filed its brief of argument on 25/4/2019 which was deemed duly filed on 27/1/2020 and distilled a single Issue for the determination of the appeal:
“Whether the Appellant’s Interpleader Summons seeking to set aside the lower Court’s Order made on 18/6/2012 granting leave to the 1st Respondent to attach and sell the landed property of the Appellant ought to have been granted by the Lower Court in the interest of justice?”
Only the 1st Respondent filed a Respondent’s Brief – which he did on 11/3/2022 and deemed duly filed on 15/3/2022. He too distilled a lone Issue for determination: “Whether from the facts and circumstances of this matter, the lower Court was right to have dismissed the Interpleader Summons filed by the Appellant?”
Arguing the appeal, Appellant’s Counsel, Inam Wilson, Esq, said the appeal revolved around the narrow issue of the right of the Appellant under an interpleader summons and how it affects and derogates from the 1st Respondent’s right to enjoy the fruits of his judgment through execution. He acknowledged that the trial Court has unfettered jurisdiction to enforce its judgment, but said that in exercising its powers of enforcement, the Court can only proceed against the moveable or immoveable property of judgment debtor, and not of any other person. He relied on Holman Bros Vs The Compass Trad. Co. Ltd (1992) 1 NWLR (Pt.217) 368 at 377.
Counsel said that the Court order of 18/6/12 granting leave to 1st Respondent (as Judgment Creditor) to attach and sell the property situate at No. 2, Bayero University Kano Road, Kano (popularly known as Cold Room Meat Store or “GIDAN NAMA”) in satisfaction of the Judgment Debtor in Suit No. K/590/2006, was on the representation of the Judgment Creditor, that the attached property was legally owned by MRS Oil & Gas Ltd, the 2nd Judgment Debtor in the suit; he said that the only premise upon which that representation was made by the Judgment Creditor was the fact that the 1st Respondent/Judgment Creditor purported to have acted as agent to MRS GROUP for the purchase of the property and not a document of title as required by law; that the fact however, was that the property was never owned by MRS Oil & Gas Co. Ltd, but by the Appellant, who responded by filing an interpleader summons on 23/7/2012, seeking to set aside the Order of the lower Court.
Counsel said that the Judgment Creditor had a duty to establish the Judgment Debtor’s title to the property it was claiming and relied on Okwoche Vs Dibia (1994) 2 NWLR (Pt.325) 195, and to state how the judgment debtor acquired the property. He relied on Onuigbo Vs Nwekeson (1993) 3 NWLR (Pt.283) 533; Ramada International & Pharmaceutical Ltd Vs Ezeonu (2016) 14 NWLR (Pt.1533) 339.
Counsel said that the evidence at the trial Court showed that the dispute was originally covered by Certificate of Occupancy No. LKN/COM/89/46 issued on 11th May, 1990 to Nasara Agro Industrial Company Ltd; that property was subsequently transferred by Nasara Agro Industrial Company Ltd to Bank of the North Plc, and its power to transfer title in the property was also not being challenged; that sometime in 2006, the property was acquired by the MRS GROUP from Unity Bank Plc.
He said that there was a dispute as to who acted as agent to the MRS GROUP in connection with the sale of the property; that the 1st Respondent claimed to have acted as the agent and commenced Suit No. K/590/2006 to claim his commission/agency fees; that during the pendency of the action, no step was taken between Unity Bank Plc and the MRS GROUP to document and perfect the sale of the property. Counsel said that a transaction for the sale of land does not start and end with the payment of purchase price; that the entity that paid for the land may not be the owner of the property, ultimately; that it is legally conceivable that the purchase price may be paid through one entity on behalf of the Group of Companies and a different entity may be designated as the actual owner of the property; that the owner of the property is only determined after all the formalities required by law for the vesting of title to the property on the owner has been fulfilled. Counsel relied on Roy Goode, Commercial Law, 3rd Edition, Pages 27 – 28, to support the above postulation. He also relied on International Textiles Industries Ltd Vs Aderemi (1999 – 2000) ALL NLR 156 at 167, where it was held by the Supreme Court:
“A transfer on sale of an estate in land is divisible into two distinct stages:
(i) The contract stage, ending with the formation of a binding contract for sale;
(ii) The conveyance stage, culminating in the legal title vesting in the purchaser by means of the appropriate instrument under seal.”
He also relied on Sylvester O. Imhanobe, Legal Drafting & Conveyancing (3rd Edition, 2010) pages 290-291. Counsel said that as per the Records of Appeal (page 335) the undisputable fact of the matter is that by letter dated 30th September, 2010, MRS Investments Co. Ltd wrote to Unity Bank Plc requesting that the Deed of Assignment in respect of the sale of the property be executed in favour of the Appellant; that prior to this, the Unity Bank Plc had not executed a deed of assignment or any document or instrument of title in favour of MRS Oil & Gas Co. Ltd, or any person to vest it or that other person with ownership of the property; that sequel to this request, Unity Bank Plc (as assignor) who until then was the owner of the property, and the Appellant (as Assignee) executed a Deed of Assignment containing the following provision (as seen on page 298 of the Records of Appeal):
“Whereas:
1. The Assignor is the Beneficial Owner of the property situate at No. 2, Bayero University Road, Kano also known as Cold Room Meat Store (hereinafter called the demised property) by virtue of a Certificate of Occupancy No. LKN/COM/89/46 dated the 27th July, 1989 and registered on the 17th day of May 1990 as No. 85 at page 85 in volume 40 of the Kano Lands Registry. The demised property being demised unto the Assignor for a term of 99 years.
2. The Assignor has agreed to sell, convey, yield up, assign and transfer his holding and rights over the land buildings contained in the demised property to the Assignee subject to the terms and conditions herein contained and free from all encumbrances.
3. The Assignor hereby ASSIGNS to the Assignee ALL THAT Demised Property more particularly described as 1.152 hectare, the boundaries of which are delineated by red verge line on the survey Plan No. R. of CKN-CCM/89/46 subject to the terms and conditions of the aforementioned Certificate of Occupancy.
4. The Assignor and the Assignee have agreed that the Assignment shall be absolute for the unexpired residue of the term granted in the aforesaid Certificate of Occupancy.
NOW THIS DEED WITNESSETH as follows:
That in pursuance of this Agreement and a valuable consideration paid by the Assignee to the Assignor (the receipt of which sum the Assignor hereby acknowledges) the Assignor hereby assigns unto the Assignee all the demised property for the unexpired residue of the term created in the aforementioned sublease”
Counsel said the above transfer was done with the consent and approval of the Governor of Kano State granted on 5/10/2011 represented by the AG of Kano State (pages 295-296 of the Records of Appeal). Thus, Counsel said that property belonged to Appellant, not to the MRS Group; that the production of the deed of Assignment of the land was a prima facie evidence of the title to the law. He relied on the case of Kyari Vs Alkali (2001) 31 WRN 88 at 116; Ngene Vs Igbo (2000) 4 NWLR (Pt 651) 131 SC at 146; Sasegbon’s Law of Nigeria Vol. 14 page 323.
Counsel said that this case is similar to that of Ramada International & Pharmaceutical Ltd Vs Ezeomu (supra). Counsel said that the Appellant was never a party to suit No. K/590/2006; that Appellant had disclosed how it became the owner of the property – pages 278-279 of the Records. Counsel urged us to allow the appeal and set aside the decision of the trial Court dismissing the inter-pleader summons.
On the allegation that the trial Court was functus officio, having held that MRS Oil & Gas Co. Ltd purchased the said property from Unity Bank Plc; that it could not again hold that the land belonged to Appellant, Counsel said that was not tenable, as there were documents to show that Unity Bank Plc transferred title to the Appellant in 2011.
On the suggestion that Appellant should have remedy only by way of appeal, as an interested party, Counsel said that too was not tenable, as Appellant was not an interested party to the claims of 1st Respondent in the suit, being not interested in the subject matter which was claims for commission/legal agency fees; that by law, Appellant was entitled to interplead to release his property, wrongly attached by the Judgment Creditor. He relied on the case of Okafor Vs Okpala (2005) 1 NWLR (Pt 374) 749; Onwualu Vs Mokwe (1999) 1 NWLR (Pt 585) 146; Babatola Vs Aladejana (2001) 12 NWLR (pt 729) 597; Anyanwoko Vs Okoye (2010) 5 NWLR (Pt 1188) 497 and Cotecna International Ltd Vs Churchgate Nig Ltd (2010) 18 NWLR (Pt 1225) 346 to say that the order of Court made by the trial Judge on 18/6/2012 was a nullity, on the ground that it was made against Appellant, who was not a party to the case of 1st Respondent, and had not been given opportunity to be heard before the order was made attaching its property to be sold; Counsel said that Appellant did not need to plead, specifically, and seek prayers to declare the order a nullity, before it can be so declared, in the circumstances of this case.
Responding, Counsel for the 1st Respondent, Chief M. N. Duru (who settled the brief) said that in the suit K/590/2006, the Defendants had averred that the agency/brokerage services in respect of the sale to the third defendant of property covered by Kano State Statutory Certificate No. LKN/COM/89/46, was rendered by Lunar Integrated Services Ltd and not by the plaintiff. And that after series of negotiation with Integrated Services Ltd, on behalf of the 3rd defendant. The 3rd defendant conveyed an acceptance of the offer of ₦115 million as the full purchase price through its letter of 16th August, 2006 to Unity Bank Plc; that Lunar Integrated Services Ltd through its letter of 21st August, 2006, forwarded on behalf of the 3rd defendant a Zenith Bank draft No. 00135444 in the sum of ₦115 million to Unity Bank Plc (see paragraphs 20-22 of the statement of defence in K/590/2006 – page 68 of the Records of Appeal).
Counsel called our attention to the repeated mention of 3rd Defendant (MRS Oil & Gas Co Ltd) as the buyer of the property covered by the Certificate of Occupancy No. LKN/COM/89/46 as at the transaction in 2006. Counsel therefore submitted that the claim of Appellant (Westaf Properties Ltd) to have purchased the same property from Unity Bank was not only misplaced but also smarked of dishonesty; that in the said joint pleadings of the Defendants/Judgment Debtors, they stated, unequivocally, that the subject property was sold by Unity Bank Plc, some time in August 2006, to MRS Oil & Gas Co. Ltd, for the sum of ₦115 Million; that the said pleadings were converted to evidence by their witnesses Zanna Kachalla Abdu (DW1) and Bala Mustapha Dawaki (DW2) in Court on 28/1/2009 and 5/3/2009, respectively, and tendered documents including the bank draft (Exhibit 10) for the payment of ₦115 Million by MRS Oil & Gas Co. Ltd for the property. Counsel also relied on Exhibit 12 (offer letter by the 3rd Defendant company to buy the property) and Exhibit B (letter by Unity Bank to the Agent of MRS Oil & Gas Co. Ltd). Counsel said those documents were exhibited to the counter affidavit opposing the interpleader summons.
Counsel said that those pieces of evidence contradicted the claims of the Appellant in paragraph 3(a) of their affidavit in support of the interpleader application that “at no time was MRS Oil & Gas Co. Ltd the owner” of the subject property.
Counsel also quoted the DW1 in the main case, when he stated:
“After the cheque cleared, Unity Bank paid us our commission, 2% of the contract sum and forwarded the title documents to us. We in turn forwarded same to the 3rd defendant….”
Counsel said the above testimony goes contrary to the assertion by the Appellant in this case, who said:
“Though payment of the purchase price of the property was made in 2006, it was not until February 2010 that Unity Bank Plc released to MRS Oil & Gas Co. Ltd Investment Ltd the originals relating to the property”. See paragraph 2.10 of Appellant’s Brief.
Counsel said that the question of who purchased the subject property from Unity Bank was long settled by the admission of MRS Oil & Gas Co. Ltd itself, (the 2nd Judgment Debtor) as clearly indicated in the foregoing narration from its pleadings and evidence in the course of trial. He urged us to so hold.
Counsel said the lower Court had granted the order to attach and sell the property, after due consideration of the case of the parties and was satisfied that the subject property was indeed owned by MRS Oil & Gas Co. Ltd. He urged us to dismiss the appeal.
RESOLUTION OF ISSUE
In its decision on 18/6/2012, the lower Court granting Judgment Creditor leave to attach and sell the subject property Certificate of Occupancy No. LKN/COM/89/46, said:
“There was no dispute in the proceedings that the (Judgment-debtors) purchased this property from Bank of the North (sic). The only contention was who acted as the agent for the sale to be entitled to the 5% agency fee. I refer in particular to paragraphs 10, 14 and 15 of the JD’s joint statement of defence dated February 2007. To show a document sated 2011 purporting that Bank of the North rather than JD is the admitted purchaser as he (sic) assignor of the property to some acclaimed WESTAF PROPERTIES LTD is not only absurd but to say the least out rightly fraudulent. It would have been more suitable if it was the said 2nd JD that even assigned to this new personality. What is more, I agree with Mr. Duru that Exhibit 1 to the counter affidavit is inadmissible not having been properly certified. The proper party to certify the document is the deed registrar who is in possession of the original that will certify that he has compared the copy with the original…
As pointed out earlier, this judgment was delivered on 05/10/2010. The JDs have neither paid the judgment debt nor appealed on the judgment. Rather they have been playing roller coster with the JC/Applicant and the Court. They should be informed that the Court is not an amusement park so the fun is over. You cannot have a JD toying with the Court and bringing this kind of frivolous and fraudulent defence to the application to attach immovable property. This is an unnecessary and unforgivable waste of judicial time. This Court frowns seriously at this attitude…
This application succeeds, same is accordingly granted as prayed…” (See pages 517 to 518 of the Records of Appeal).
Appellant’s application that the property was its own and for same to be released, was refused on 10/12/12 (which forms the basis of this appeal). At the time of the order on 18/6/12, attaching the property for sale to recover the judgment debt, Appellant said it was not a party to the case and so not a factor considered by the trial Court.
Appellant has produced some evidence to show that, as at the time of making the ruling of the Court on 18/6/2012, allowing the 1st Respondent/judgment creditor leave to attach and sell the property, covered by the Certificate of Occupancy No. LKN/COM/89/46, in satisfaction of the existing judgment debt in favour of the Judgment Creditors, it owned the said property?
Was it Appellant or the Judgment Debtors, MRS Group (Particularly, MRS Oil & Gas C. Ltd) that owned the subject property?
The real issue in this appeal was not, therefore about the 1st Respondent/Judgment Creditor’s right to recover the judgment debt from the Judgment Debtors, and/or their (Judgment Debtors) attitude to satisfying the judgment debt. It was who owned the land as at 23/7/2012?
Appellant produced some documents to show that the subject property was registered in the name of Appellant, following the letter by MRS Oil & Gas Co. Ltd to Unity Bank Plc to prepare a deed of Assignment of the property in favour of Appellant. The letter was written on 30th Sept, 2010, when there was no contention about the ownership of the property. Page 334 of Records of Appeal carries the Resolution of MRS INVESTMENTS CO LTD on the issue, raised to the Corporate Affairs Commission, to the effect that:
“At an extraordinary meeting of the Board of Directors of MRS INVESTMENTS COMPANY LIMITED held on 30th September, 2012 at No. 2 Tin Can Island, Port Road Apapa Lagos; the following special resolution was proposed and duly passed:
“That the unexecuted Deed of Assignment of the Cold Meat Store (Gidan Nama) at BUK Road, Kano purchased by MRS Investment Limited from Unity Bank Plc be now executed in favour of Westaf Properties, an affiliate of the company…” (Underlining mine).
On page 335 of the Records, is the letter of MRS Investments Co. Ltd addressed to the Head of Administration Unity Bank Plc, on the request to assign the subject property to Appellant. It said:
“Sequel to the sale of the above mentioned property to us and the subsequent release of the original certificate of occupancy No. LKN/COM/89/46 and original Deed of Assignment between Nasara Agro-Industrial Company Limited and Bank of the North (Unity Bank Plc), we hereby humbly request the Deed of Assignment be executed in favour of our affiliate company known as and operating under the name Westaf Properties Limited.
We have enclosed the Board Resolution of the Board of MRS Investments Company Limited authorizing the transaction and copies of the Certificate of INCORPORATION, Form CAC2 and CAC7 of the companies establishing the relationship between the two.” (Underlining mine).
Effort was made by the MRS Group to perfect the registration of the said land (subject property) in the name of Appellant, sometime on October, 5th October 2011, with the approval of the Government of Kano State for that transaction. (See pages 289 to 300 of the Records of Appeal).
In deciding the application for the interpleaders summons and refusing it, the learned trial Court said:
“In considering the submissions of Mr. Wilson, true that Westaf was not a party to the application of the JC dated 12th April 2012 which application was moved on 04/06/2012 and ruling given on 18th June, 2012… The order of the Court is very clear and it is not made against Westaf nor does it affect it. If it did, the proper order to seek is one setting aside the alleged illegal and null order of Court… This interpleader contains nothing about the illegality of the said order which gave rise to the order. The claimant cannot now be heard to say that the order is a nullity as that does not form part of the prayers…
The trite position of the law is that a litigant cannot be given what he did not ask for. More importantly, Counsel lost sight of the findings which made reference to the judgment of this Court, delivered on the 25th January, 2010. This judgment was delivered in favour of the JC, Barrister Abubakar D. Sani against the 1st and 3rd JDs, Messrs Sayyu Dantata & MRS Oil & Gas respectively. In the proceedings… the JDs clearly admitted that the property was sold to the 3rd JD MRS Oil & Gas. This was reflected in the judgment of the Court… This shows that it is not just the ruling of that contains the holding that MRS Oil & Gas is the purchaser of the subject property. The claim in Exhibit FBA3 annexed to the letter and further affidavit is that MRS Investments Company Ltd purchased the property instead of MRS Oil & Gas. Mr. Wilson chose not to respond to the submission of the respondent’s counsel, Mr. Duru to the effect that the document itself is worthless, as MRS Investments Company Ltd is not the purchaser. It is a document made after the judgment of the Court of 25/01/2010. This document cannot change the decision of the Court. It is therefore, in my view, not the issue about giving a ruling and making order against a party not before it, but rather the case of being asked to overrule my earlier decision. This I agree with Mr. Duru I am incompetent to do. This case is not the usual interpleader issue simpliciter, because the mother case was determined on the claim for commission for sale of the subject property… It was settled that the subject property was sold to MRS Oil & Gas by Unity Bank. The only contention was that it was Lunar Integrated Services that acted as agent and paid by MRS and no other JC/Respondent herein. Having found that MRS Oil & Gas purchased the property and refused to pay the JC/respondent commission, I cannot now be called upon to overrule myself that the property belongs to Westaf, however it acquired it. I therefore agree with Mr. Duru that in the circumstances of this case the only recourse of the claimant is to appeal as an interested party.” See pages 529 to 531 of the Records.
The Court also said that Appellant had not produced any evidence to show that it acquired the subject property from MRS Oil & Gas Co. Ltd, which was ruled to have bought the property; that the deed of Assignment showing Appellant as the owner of the property, was made about 11 months, after the judgment that the property belonged to MRS Oil & Gas Co. Ltd. The Court said that a Deed of Assignment cannot stand on its own, without a formal valid agreement of sale or transfer of the property. It also observed that the MRS Investment Co. Ltd that requested the Deed of Assignment to be made in favour of Appellant, was not part of the case, which revealed MRS Oil & Gas Co. Ltd as the owner of the property. Thus, there was nothing before the Court to find the claim of Appellant as owner of the subject property. The Court said:
“I find that this application is a huge waste of valuable judicial time. It fails and I accordingly dismiss it. The order of Court made on the 18th June, 2012 subsists and is reaffirmed.” See page 533 of the Records.
I agree with the reasoning of the learned trial Judge, completely and add that the MRS Group (comprising MRS Oil & Gas Co. Ltd, MRS Investments Co. Ltd and Alhaji Sayyu I. Dantata, and other such names) appeared to be playing games to frustrate the Judgment Creditor from realizing the gains of his judgment, delivered on 25/1/2010 in favour of the Judgment Creditor/Respondent.
The ownership of the subject property was not really in issue as evidence clearly showed it belonged to the MRS Group (MRS Oil & Gas Co. Ltd) which appeared to have undertaken the moves to vest Appellant with the subject property, only after the decision of the trial Court, that the decision of the trial Court (that the property belonged to MRS Oil & Gas Co. Ltd which was never disputed), simply because the Judgment Creditor evinced interest to use the subject property to recover the judgment debt.
In any case, Appellant appears to be part and parcel of the MRS GROUP, as the letters issued by MRS Investments Co. Ltd to Unity Bank Plc and for Appellant, as basis for its claim of ownership of the land, clearly established the link and relationship of Appellant with MRS Investments Co. Ltd (and by extension with the other, MRS Oil & Gas Co. Ltd).
In the letter of 30/9/2012, carrying the Resolution of MRS Investments Co. Ltd, for the Unity Bank Plc to execute the Deed of Assignment in the name of Appellant, the MRS GROUP presented “Westaf Properties Limited, as affiliate of the company” (MRS Investments Co. Ltd).
And in the letter to Unity Bank Plc for that purpose, MRS Investments Co. Ltd said:
“… we hereby humbly request that the Deed of Assignment be executed in favour of our affiliate company known as and operating under the name Westaf Properties Limited. We have enclosed the Board Resolution… authorizing the transaction and copies of certificate of incorporation, Form CAC2 and CAC7 of the Companies establishing the relationship between the two.” (See Pages 334 and 335 of the Records)
Appellant was, therefore, part of the MRS GROUP and so the said alleged Deed of Assignment, made in the name of Appellant, was made consequent upon the payment of the said cost of the property – N115 million, paid by affiliate company (the MRS Oil & Gas Co. Ltd) to Unity Bank Plc, in 2006. They (companies) are of the same corporate family – MRS GROUP. That means, the arrangement to execute the Deed of Assignment of the subject property in the name of Appellant was for the corporate convenience and mutual benefits – Appellant and the Affiliate Companies – MRS Oil & Gas Co. Ltd and MRS Investments Co. Ltd!
The ownership therefore still remained in the MRS Group of Companies, as each company in the affiliate group, including Appellant, was therefore privy to the entire suit that resulted in the judgment/rulings for the Judgment Creditor/Respondent, in my view. See the case of Bako & Anor Vs Dantata Investments and Securities (2022) LPELR–58070 CA, where similar corporate interests were accommodated and we held:
The law is trite, that every party in or privy to a suit is bound by the decision of the Court reached at the determination of their suit. See the case of Agbogunleri Vs Depo & Ors (2008) LPELR 243 (SC), where it was held: “Therefore, judgment against a testator operates downstream as the first suit ID/199/81, to operate against any fresh claim in respect of the same land or property by the same parties. This has been the position of the law for quite sometime. Thus, the general principle of the law relating to privy in title is that in transactions relating to land, any person who derives title from or takes an assignment from, or is let into possession by, or otherwise claims or “comes in” under the actual representor, is bound by the same representation, and consequent estoppel, as that which binds such actual representator. See Tylor v. Needham (1810) 2 Taunt. 279; Spenser, Bower and Turner in their book: Estoppel by Representation, Third Edition, Butterworth, London, 1977, pages 123-124.” Per MUHAMMAD, JSC.”
Per MBABA, JCA (Pp. 21-22, paras. B-A)
“On the meaning of the word “privy”, the authorities are replete, as in RE: Agboyi-Ketu Local Development Area & Anor (2017) LPELR-41955 CA, where this Court, per Georgewill, JCA, held: “In relation to the facts and circumstances of this application, the word “Privy” has been defined so succinctly as “A person who is in privity with another. One who is a partaker or has any part or interest in any action or matter or thing. In connection with the doctrine of Res Judicata, one who after the commencement of the action has acquired interest in the subject matter affected by the judgment through or under one of the parties as by inheritances succession, purchase or assignment.” See Black’s Law Dictionary 6th Edition AT p. 1200. See also Daniel v. Kadiri (Supra), Chief Oyelakin Balogun v. Pastor Moses Afolayan (2005) All FWLR (Pt. 85) 331 AT p. 334, Kola Adedeji & Anor v. Otunba Segun Adebayo & Ors (2012) LPELR 7990 (CA).” See also Agbogunleri Vs Depo & Ors (supra), where it was held: “But, who is a privy? In Arabio v. Kanga (1932) 1 WACA 253 at p. 254, a privy was defined as that person whose title is derived from and who claims through a party. It may also imply identity of successive interest or persons having interest in property.” Per MUHAMMAD, JSC. In the case of R.T. NA & Ors Vs H.W.U.N. & Ors (2008) LPELR- 3196 (SC) (cited by Appellant): “…Under our law, a person whose interest is involved or is in issue in an action and who knowingly chose to stand by and let other fight his battle for him, is equally bound by the result in the same way as if he were a party.”
It was further held in the case of Bako Vs Dantata (supra) as follows, in a situation of an affiliate company taking another suit, after being represented, in a case:
“The principle behind this rule, is that where a competent Court has determined an issue, and entered judgment thereon, neither party may relitigate that issue by formulating a fresh action on what has already been decided. Madukolu v. Nkemdilim (1962) 1 All NLR 587. But it is important to note that when a plea of a res judicata is made, it is necessary to show not only that the cause of action is the same, but also that the plaintiff has had an opportunity to recover in the first action that which he seeks to recover in the second. Re Hilton ex p. March (1892) 67 L.T. 594.” Per CRAIG, JSC.
I think the Respondent was only trying to be clever, by instituting a fresh suit (K/586/2018) on the same subject matter and property, at Ahmadu Bello Way, Kano, (comprising Nos. 14a and 14b, thereof) covered by Certificate of Occupancy No. LKN/RES/82/392 of 9th November, 1983 (also pleaded as Certificate of Occupancy No. LKN/RES/RC/92/39 in K/190/2014), after the Respondent herein had (in the name of Bebeji Oil and Allied Products Ltd), litigated on the same, to conclusion in Suit No. K/190/2014, wherein it staked claim in the counter-claim, as 4th Defendant, in the case.
What I cannot understand in this case, is why the MRS Group rather elect to gamble with their interest in the subject property worth hundreds of Millions of Naira, instead of satisfying the judgment debt of less than N10 Million, or appeal against the said judgment, if dissatisfied. Acting by subterfuge appears not to be in the overall best interest of the Appellant and the other MRS Group.
I cannot see any merit in this appeal and so dismiss it and affirm the ruling of the Learned trial Court, delivered on 10/12/2012.
Appellant shall pay cost of N100,000.00 to 1st Respondent.
BOLOUKUROMO MOSES UGO, J.C.A.: I had a preview of the leading judgment of my learned brother, Ita G. Mbaba JCA. I am in agreement with him that the decision of the High Court of Kano State refusing the interpleader summons of the Appellant cannot be faulted. I have nothing useful to add. I also dismiss the appeal.
I abide by all consequential orders contained in the lead judgment including that as costs.
ABUBAKAR MUAZU LAMIDO, J.C.A.: My learned brother ITA GEORGE MBABA, JCA obliged me a copy of his judgment. I have gone through same and agree with the reasoning and conclusion that there is no merit in the appeal. I adopt same as mine and have nothing more to add. For the same reasons, I also dismiss the appeal and abide by all the consequential orders as contained in the lead judgment.
Appearances:
INAM WILSON, ESQ. For Appellant(s)
CHIEF M.N. DURU FOR 1ST RESPONDENT For Respondent(s)
